Opinion
IP 01-198-C-T/K.
October 16, 2002
ENTRY ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AS MODIFIED HEREIN
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
After serving approximately three months as the Comptroller for Defendant Indiana Department of Labor, Plaintiff Rudolph Frazier, Sr. was demoted. Plaintiff sued Defendant, alleging he was removed from his position because of his race and in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in violation of Title VII of the Civil Rights Act of 1964. Defendant moved for summary judgment, and Magistrate Judge Tim A. Baker recommended that the Defendant's motion for summary judgment be denied on Plaintiff's race discrimination claim but granted on his retaliation claim.
This case is before the court on the Defendant's Objection To Magistrate[']s Report And Recommendation On Defendant's Motion For Summary Judgment (the "Report and Recommendation"). This entry presumes a familiarity with the Report and Recommendation, entered September 11, 2002 (docket # 64), and the reader should refer to that decision for a discussion of the factual background of this case. For the following reasons, the undersigned will overrule Defendant's objection and adopt the Report and Recommendation with the slight modification discussed below.
Standard of Review
"If a party objects to a magistrate judge's recommended disposition, the district judge `shall make a de novo determination upon the record . . ., or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made. . . ." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999) (quoting Fed.R.Civ.P. 72(b)). The district judge then "may accept, reject, or modify the recommended decision. . . ." Id.
Discussion
Neither Plaintiff nor Defendant objected to Magistrate Judge Baker's recommendation that summary judgment be granted on Plaintiff's retaliation claim. The undersigned has considered the recommendation, the parties' briefs, and the record, and concludes that Magistrate Judge Baker correctly found that Plaintiff's retaliation claim fails to survive summary judgment because of insufficient evidence to establish a causal connection between Plaintiff's protected activity and any adverse employment action against him. Accordingly, the undersigned will ADOPT the Magistrate Judge's Report and Recommendation regarding Plaintiff's retaliation claim and will GRANT Defendant's motion for summary judgment on that claim.
Defendant objects to Magistrate Judge Baker's recommendation that the motion for summary judgment be denied on Plaintiff's race discrimination claim. In particular, Defendant objects to the Magistrate Judge's conclusion that Plaintiff has made a sufficient showing that similarly situated white employees received more favorable treatment with respect to receiving performance evaluations and/or work improvement plans before being demoted or terminated. Having reviewed the Report and Recommendation, the record, including the summary judgment filings, and the Defendant's objection, the undersigned concludes that Magistrate Judge Baker is correct. However, in reaching this conclusion, the undersigned does not rely on evidence of the treatment of any proffered comparable other than Nancy Jones.
Defendant argues that the Magistrate Judge erred by finding that six white employees who received performance evaluations in 1998 and 1999 and four white employees who were given work improvement plans in 1997 and 1998 (collectively the "ten proffered comparables") were similarly situated to Plaintiff. Putting aside the question of whether these ten individuals were similarly situated to Plaintiff, they were not the only comparables proffered by Plaintiff. He has pointed to one other individual — Ms. Jones.
Commissioner Timothy Joyce did not perform the appraisals of or work improvement plans for these ten proffered comparables, but merely signed off on the appraisals and plans done by others. Also, these ten appear to have held positions quite different from that held by Plaintiff. These differences raise the question of whether these ten individuals are relevant as comparables. Yet, the court need not decide this issue now because Plaintiff has proffered another comparable who does not present these differences. Thus, a decision on this issue is left for another day.
To meet his burden of demonstrating that another employee is "similarly situated," Plaintiff must show "that there is someone who is directly comparable to [him] in all material respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (citations omitted). The court "must look at all relevant factors, the number of which depends on the context of the case." Id.
The case law recognizes two key factors applicable to this case. The first is that the plaintiff and proffered comparable had the same supervisor/evaluator. See, e.g., Snipes v. Ill. Dep't of Corrections, 291 F.2d 460, 463 (7th Cir. 2002) (holding district court did not abuse its discretion in concluding that plaintiff was not similarly situated to coemployees who worked under different supervisors than plaintiff); Patterson, 281 F.3d at 680 (finding plaintiff not comparable to another employee in all material respects where plaintiff and other employee were evaluated by different supervisors); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) (finding the lack of a common supervisor precluded showing of similarity) (citations omitted). The Seventh Circuit has explained why commonality of supervisors is critical: "`[d]ifferent employment decisions, concerning different employees, made by different supervisors . . . sufficiently account for any disparity in treatment, thereby preventing an inference of discrimination.'" Snipes, 291 F.3d at 463 (quoting Radue, 219 F.3d at 618 (citations omitted)); see also Radue, 219 F.3d at 618 (explaining when "different decision-makers are involved, two decisions are rarely similarly situated in all respects").
The second key factor relevant to this case is that the employee and proffered comparable held the same or equivalent positions. See, e.g., Patterson, 281 F.3d at 680-81 (holding plaintiff failed to show coworker was similarly situated where coworker "held an entirely different position in another division of the company"); Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d 644, 651 (7th Cir. 2001) (deciding comparator was not similarly situated to plaintiff because they did not hold the same or equivalent positions at the time of the challenged employment decision; the comparator held a higher level position than plaintiff); cf. Johnson v. Zema Sys. Corp., 170 F.3d 734, 743-44 (7th Cir. 1999) (comparing plaintiff to only other employee in same level managerial position as plaintiff). Other relevant factors include whether the employees were "subject to the same standards," engaged in similar conduct, and "had comparable experience, education and qualifications," provided these factors were taken into account by the employer when making the employment decisions in question. Radue, 219 F.3d at 617-18 (citations omitted).
Ms. Jones and Plaintiff held the same position with Defendant, Comptroller, and had the same supervisor/evaluator, Commissioner Joyce. The record establishes that Joyce conducted a performance evaluation for Ms. Jones in October 1997 before her demotion. Commissioner Joyce, however, did not conduct a performance evaluation of Plaintiff before his demotion. Thus, the record supports a reasonable finding that Ms. Jones was treated more favorably than Plaintiff.
Defendant submits that Plaintiff's unsatisfactory performance distinguishes him from all proffered comparables. As an initial matter, the section of Defendant's summary judgment memorandum labeled "Statement of Material Facts Not in Dispute" contains no factual assertion regarding Plaintiff's alleged unsatisfactory performance. Plaintiff, however, asserts in his Statement of Material Facts in Dispute that his performance was satisfactory, and this assertion is supported by appropriate citation to the record. (See Pl.'s Statement Material Facts In Dispute, No. 3.) Thus, pursuant to the court's February 4, 2002 Order Regarding Local Rule 56.1 (the "February 4 Order"), it is assumed that Plaintiff's performance was satisfactory. But even assuming that Plaintiff's performance was unsatisfactory, the record supports a reasonable inference that Ms. Jones' performance also was unsatisfactory and led to her demotion from the same position later held by Plaintiff. So, Plaintiff can demonstrate that a similarly situated employee outside the protected class received more favorable treatment than he in respect to receiving performance evaluations and/or work improvement plans before being demoted or terminated.
Plaintiff's own factual assertion is conclusory, but since Defendant offered no factual assertion regarding unsatisfactory performance, the court finds Plaintiff's factual submission and supporting citations sufficient for purposes of summary judgment. For purposes of establishing a prima facie case, proof that an employee was meeting his employer's legitimate expectations may be based solely on the employee's own testimony about the quality of his work. See, e.g., Rush v. McDonald's Corp., 966 F.2d 1104, 1114 n. 35 (7th Cir. 1992).
Defendant seems to suggest that another factor distinguishing Plaintiff from the proffered comparables is that Plaintiff's unsatisfactory performance occurred during his working test period. Defendant submits that given Plaintiff's high level position, Commissioner Joyce could not afford to wait until the end of the working test period to complete a performance evaluation. Again, pursuant to the court's February 4 Order, it is assumed that Plaintiff's performance was satisfactory. And, it is up to the trier of fact to decide whether or not to credit Defendant's explanation for failing to give Plaintiff a performance evaluation or work improvement plan, both of which seem designed to afford an employee whose performance is not up to snuff to make the improvements needed to keep his or her job. Plaintiff, for whatever reason, was not afforded the benefit of a work improvement plan or performance appraisal. Plaintiff has raised a triable issue as to whether this reason was impermissible race discrimination.
Plaintiff's burden in establishing a prima facie case of disparate treatment "is not onerous." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). "If the [McDonnell Douglas] test is to work . . . courts should neither narrow McDonnell Douglas's application such that no one is similarly situated, nor broaden its application such that no one is disparately treated." Allen v. Muriello, 217 F.3d 517, 522 (7th Cir. 2000) (reversing a grant of summary judgment for the defendant). The undersigned finds that Plaintiff has come forward with sufficient evidence to demonstrate that a similarly situated employee outside the protected class, namely Ms. Jones, received more favorable treatment than he and, therefore, can demonstrate a prima facie case of race discrimination. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645-46 (3rd Cir. 1998) (suggesting that evidence of preferential treatment of a single member not in the protected class may be relevant under certain circumstances); Bates v. Greyhound Lines, Inc., 81 F. Supp.2d 1292, 1300-01 (N.D.Fla. 2000) ("Bates has established that she was treated less favorably than one or two similarly situated African Americans. This is sufficient to satisfy this prong of the test for establishing a prima facie case."). Accordingly, Defendant's objection to the Magistrate Judge's conclusion that Plaintiff can demonstrate a prima facie case of race discrimination is OVERRULED.
Conclusion
Defendant's objection to Magistrate Judge Baker's Report and Recommendation is OVERRULED. The undersigned ADOPTS Magistrate Judge Baker's Report and Recommendation with the modification noted above. Accordingly, Defendant's motion for summary judgment will be GRANTED on Plaintiff's retaliation claim and DENIED on his race discrimination claim.
A pretrial conference will be set for purposes of scheduling a trial date.
ALL OF WHICH IS ORDERED this 16th day of October 2002.